The clarion., 1887-04-27
Reversed and remanded.
Mcdaniel, ct al,

ALLEN.
Appeal from the Chancery Court of Lee
county. Hon. Baxter Mcfarland,
Chancellor.
J. H. Barr, for the appellant.
No counsel for the appellee.
In 1881, one Willoughby Bolen died,
testate, leaving widow, Margaret, and
ten children, enc of whom was J. H..
Bolen, surviving him. The sixth clause
of Willoughby Bolen's will was IS fol-
lows: Il give and bequeath unto my
beloved wife, Margaret E. Bolen, the
rest and residue of my estate, both
real and personal, of any and all descrip-
tion whatever during the term Of her
natural life, and upon her death to be
divided equally among the heirs of my
body" Shortly after the death of the
father one of the children did, and in
1882, J. II. Bolen, another child, died
without heirs and without having made
any disposition of his property. In
1888, Margaret Bolen, the widow, died.
On the petition of j. NJ. Allen, a cred
itor of J. II. Bolen deceased, one Ander-
son, was appointed administrator. An
derson then filed petition before the
chancellor to have the interest of j. II.
Bolen deceased in certain lands covered
by the 9th clause in the will of Will
loughby Bolen sold, and the proceeds
devoted to the payment of J. II. BOlen's
debts, he not having left any personal
property. The chancellor ordered that
J. II. Bolen's interest, which was ad
Judged to be a one-ninth interest, in the
lands in question be sold. At this sale
J. NJ. Allen became the purchaser. E.
G. Mcdaniel purchased the interest of
w. r. Bolen, another one of the chill
dren of Willoughby Bolen, deceased,
and was also made guardian of several
of the minor children of Willoughby
Bolen.
]. NJ. Allen filed his bill for partition
of the lands. The chancellor decreed
that Allen was entitled to J. II. Bolen's
interest in the lands by virtue of his
purchase at the sale under the former
decree of the chancellor above referred
to, one-ninth interest in the lands COW
cred by the 9th clause of Willoughby
Bolen's will, aud ordered sale and par
tition of the same. The defendants, the
surviving children of Willoughby Bolen
and their representatives, appealed.
COOPER, C. j., delivered the opinion of
the court.
J. II. Bolen took as purchaser under
the will of his father, Willoughby Bo-
len, and not as heir, at law. As heir at
law he would have taken an undivided
interest with the widow Of the testator
and the other heirs at law. Code of
1880, section 1271; and this would have
given him an estate in possession to be
presently enjoyed. By the will the
widow was given an estate for life in the
whole land instead of portion thereof
in fee, and remainder in the whole
was limited to the heirs at law. The
estate, therefore, given by the viii, is
different, both IN character and in the
subject matter than would have passed
by descent, and in such cases the heir at
law takes under the will, and not by de-
scent. kent's Com, 507.
The remainder limited by the testator
to his heirs at law was vested, and not
contingent; those who were alive at the
death of the testator took the estate, and
not those only who survived the tenant
for life. King v. King, Watts &
Sergt, 205; Bentley V. Long, l Strobh,
Eq., 43; Doe V. Provost, johnson, 81
'.The law favors vested estates, and no
remainder will be construed to be con
tingent, which may, consistently with
the intention, be deemed vested 4
Kent's CON-, 203.
The appellee, by his purchase at the
sale made by the administrator of j. III.
Bolen, acquired the interest of the in
testate in the land, and was entitled to
partition, as prayed. The decree must
therefore be affirmed.